Citation Nr: 0824723
Decision Date: 07/23/08 Archive Date: 07/30/08
DOCKET NO. 05-20 242 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The appellant had active service from January 1945 to October
1946. This case originally came before the Board of
Veterans' Appeals (Board) on appeal from a January 2005
rating decision issued by the Department of Veterans Affairs
(VA) Regional Office (RO) in Columbia, South Carolina that
denied the appellant's claim of entitlement to service
connection for bilateral hearing loss.
In July 2006, a Board hearing was held at the RO before the
undersigned, who is the Veterans Law Judge rendering the
final determination in this claim and was designated by the
Chairman of the Board to conduct that hearing, pursuant to
38 U.S.C.A. § 7107. A transcript of that hearing has been
associated with the claims file.
The Board thereafter denied the appellant's claim for service
connection for bilateral hearing loss in a decision dated
September 15, 2006. The appellant then appealed the Board's
decision to the United States Court of Appeals for Veterans
Claims (hereinafter Court). In April 2008, the parties filed
a Joint Motion for Remand. An April 2008 Order of the Court
granted the Joint Motion and vacated the Board's decision.
The issue on appeal was remanded for readjudication pursuant
to the provisions of 38 U.S.C.A. § 7252(a).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Court has remanded this appeal for readjudication
pursuant to the provisions of 38 U.S.C.A. § 7252(a) for
compliance with the instructions in the Joint Motion. A
determination has been made that additional development is
necessary in the current appeal. Accordingly, further
appellate consideration will be deferred and this case is
REMANDED to the AMC/RO for action as described below.
In January 2005, the RO made a formal finding of the
unavailability of the veteran's service records because the
National Personnel Record Center (NPRC) had identified the
appellant's records as having been destroyed in the fire of
1973. In cases where the veteran's service medical records
are unavailable through no fault of the claimant, there is a
heightened obligation to assist the claimant in the
development of his case. O'Hare v. Derwinski, 1 Vet. App.
365 (1991). The heightened duty to assist the veteran in
developing facts pertinent to his claims in a case where
service medical records are presumed destroyed includes the
obligation to search for alternative medical records. Moore
v. Derwinski, 1 Vet. App. 401 (1991).
In this case, it is unclear whether the RO has attempted to
obtain alternative records. This should be rectified and
documented on remand.
Where the claimant's service medical records have been
destroyed or lost, the Board is under a duty to advise the
claimant to obtain other forms of evidence, such as lay
testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The
VA Adjudication Procedure Manual provides that alternate
sources of evidence may be utilized in cases where the
service medical records are missing. A non-exhaustive list
of documents that may be substituted for service medical
records in this case includes: statements from service
medical personnel, "buddy" certificates or affidavits,
employment physical examinations, medical evidence from
hospitals, clinics, and private physicians where a veteran
may have sought treatment, especially soon after service
discharge, letters written during service, photographs taken
during service, pharmacy prescription records, and insurance
examinations. VA Adjudication Procedure Manual, Manual M21-
1, Part III, paragraph 4.25(c) and 4.29 (Oct. 6, 1993).
As noted in the Joint Motion, VA did not advise the appellant
to submit alternative forms of evidence to support his claim.
The appellant should be afforded the opportunity to provide
such documentation.
Furthermore, the VA medical opinions of record have been
declared to be inadequate. The Joint Motion indicates that
the September 2004 examiner's response was inadequate because
it was speculative and the December 2005 examiner's report
was inadequate because review of the audiograms of record was
not reflected in the opinion. Further, the examiner's
opinion did not discuss the third party statements of record
concerning the appellant's hearing capacity after his return
from active service.
The Joint Motion also discussed the failure to address the
credibility of the lay statements of record. In particular,
the credibility of the layperson observations concerning the
continuity of the appellant's symptoms of hearing loss after
his separation from active service.
The medical evidence of record is insufficient for the Board
to render a decision on the etiology and onset date of the
appellant's hearing loss; there is no adequate probative
medical opinion of record that addresses whether there is any
relationship between the appellant's active military service
and his development of the hearing loss that was clinically
documented at least as early as 1969. The considerations
described above require a remand for a search for service
medical records and for further investigation by medical
professionals, inasmuch as the Board is prohibited from
substituting its own unsubstantiated medical opinions. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In
addition, the duty to assist includes obtaining medical
records and examinations where indicated by the facts and
circumstances of an individual case. See Murphy v.
Derwinski, 1 Vet. App. 78 (1990). Where the record before
the Board is inadequate to render a fully informed decision,
a remand to the RO is required in order to fulfill its
statutory duty to assist the appellant to develop the facts
pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371,
377 (1993).
To ensure that VA has met its duty to assist in developing
the facts pertinent to the claim remaining on appeal and to
afford full procedural due process, the case is REMANDED for
the following:
1. The AMC/RO must review the claims
file and ensure that all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002 & Supp. 2007), the
implementing regulations found at
38 C.F.R. § 3.159 (2007) and any other
applicable legal precedent is completed.
In particular, the AMC/RO should notify
the veteran of the information and
evidence yet needed to substantiate his
service connection claim and of what part
of such evidence he should obtain, and
what part the AMC/RO will yet attempt to
obtain on his behalf. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002); see
also Charles v. Principi, 16 Vet. App.
370, 373-374 (2002) and Dingess/Hartman
v. Nicholson, 19 Vet. App. 473 (2006).
2. The AMC/RO should take appropriate
steps to secure all alternative service
medical records for the veteran from any
appropriate source. Per the VA
Adjudication Procedure Manual, the non-
exhaustive list of documents that may be
substituted for service medical records
in this case includes, but is not limited
to, statements from service medical
personnel, "buddy" certificates or
affidavits, employment physical
examinations, medical evidence from
hospitals, clinics, and private
physicians where a veteran may have
sought treatment, especially soon after
service discharge, letters written during
service, photographs taken during
service, pharmacy prescription records,
and insurance examinations. Any and all
records obtained should be associated
with the claims file. If there are no
records, the RO should so specifically
find and the documentation used in making
that determination should be set forth in
the claims file.
3. The AMC/RO should contact the
appellant to obtain the names and
addresses of all medical care providers
(including any employee health
facilities) who have treated him for any
hearing-related disorder since service.
After securing the necessary release(s),
the AMC/RO should obtain those records
that have not been previously secured.
To the extent there is an attempt to
obtain records that is unsuccessful, the
claims file should contain documentation
of the attempts made. The appellant and
his representative should also be
informed of the negative results, and
should be given opportunity to submit the
sought-after records.
4. After the above development has been
completed, the AMC/RO should arrange for
an audiologist and an otolaryngologist to
review the claims file, including all
pertinent medical records, and provide a
written opinion as to the etiology and
onset of the veteran's current hearing
loss. The reviewers are requested to
provide an opinion as to the medical
probability that any documented hearing
loss is related to acoustic trauma the
veteran may have experienced in service
as opposed to that which he experienced
in relation with his post-service
occupational and/or recreational history
or some other cause or causes.
Specifically, the reviewers are requested
to state whether the veteran's defective
hearing is related to any incident of
military service, and state the reasons
for such an opinion. Each opinion should
include a discussion of the audiograms of
record, to include those dated in October
1969, May 1982, and December 1987. Each
opinion should also include a discussion
of the private medical records dating
from 1969 that mention the veteran's
problems with hearing loss, as well as a
discussion of the descriptions of the
veteran's hearing loss symptoms over the
years that were submitted by the veteran
and his family members. The effect and
significance, if any, of in-service and
post-service noise exposure must be
delineated by each reviewer.
The reviewers must state the reasons for
each opinion rendered. If these matters
cannot be medically determined without
resort to mere conjecture, this should be
commented upon by the examiners. If it
is determined that an examination is
needed before the requested opinions can
be rendered, the AMC/RO should schedule
the appellant for such an examination.
5. Upon receipt of each VA reviewer's
report, the RO should conduct a review to
verify that all requested opinions have
been offered. If information is deemed
lacking, the RO should refer the report
to the VA reviewer for corrections or
additions.
6. Then, after the completion of any
indicated additional development, the RO
should readjudicate the appellant's
bilateral hearing loss claim. The
readjudication should reflect
consideration of all the evidence of
record and be accomplished with
application of all appropriate legal
theories and caselaw, including those
pertaining to continuity of symptoms and
the credibility of lay statements.
7. If the benefit sought on appeal
remains denied, the appellant and his
representative should be provided a
Supplemental Statement of the Case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue on appeal. All relevant evidence
of record should be addressed. The
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion as to the outcome of this case.
The appellant need take no action until so informed. The
purpose of this REMAND is to ensure compliance with due
process considerations.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The appellant is hereby notified that it is the veteran's
responsibility to report for any scheduled examination and to
cooperate in the development of the case, and that the
consequences of failure to report for a VA examination
without good cause may include denial of the claim.
38 C.F.R. §§ 3.158 and 3.655.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).